S K PATTNAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner imported into the State of Orissa India -Made Foreign Liquor and stored it in the licensed bonded warehouse from where liquor is released for sale. While liquor was stored in the warehouse, a portion of the imported stock became sediment and therefore, unfit for human consumption. The said stock was destroyed. A notice was issued to him for payment of countervailing duty on the said stock to the tune of Rs. 10,02,182.00. Validity of the said demand is questioned in this petition. According to the petitioner, the quantity of liquor lost in the bonded warehouse and which cannot be issued for sale therefrom cannot be subjected to countervailing duty under the Bihar and Orissa Excise Act, 1915 (the Act) in view of Section 28 thereof.

(2.) IN support of the contention, the petitioner relied upon a Division Bench decision of this Court in the case of P.D. Jain v. State of Orissa (OJC No. 2241 of 1988,disposed of on 11 -5 -1992), which was followed in the case of Mohan Meakins Ltd. v. State of Orissa, (OJC No. 1971 of 1991. disposed of on 20 -91993). The Division Bench hearing this matter felt that these two decisions of this Court need re -consideration, and hence, a reference was made to the Full Bench. This is how the matter is before us.

(3.) THE term 'import' meams to bring into the State as the definition given in Section 2(12) shows. It is clear from the above scheme of the Act and so also the basic concept of countervailing duty that it is imposable at the time and at the point of import which essentially means its first entry into the State. Section 27 is the charging section and Section 28 deals with the assessment and collection of duty. The use of the words imposed 'levied' and 'payment' in Section 28. clearly Indicates that the three words are used in the sense of impost, assessment and collection. Imposition is as per Section 27 and assessment and payment, i.e. collection of duty, is as per Section 28. Collection may be at the stage of entry in the State and wherever permitted by the Act at the subsequent date and/or stage of removal from bonded warehouse for sale In that case payment of the duty shall be at the rate in force on that date. For administrative convenience, collection of duty, can be postponed but the duty is on goods actually imported it is thus clear that the charge or incidence is already attracted on the taxable event taking place, viz., import of goods in the State and the statutory facility of postponement of payment of duty under the Act and/or Rules . framed there under in no way affects the incidence of duty on the whole material imported.